Fwd: Re: Marriage: Gender and Conjoined Twins

Trevor Morrison trevor-morrison at postoffice.law.cornell.edu
Tue Mar 16 21:25:26 PST 2004

I suppose if I had said that Glucksberg had been overruled, Rick might have a point.  But he will search my earlier posts in vain for any such statement.  What I *did* say is that analyzing a fundamental rights question only under Glucksberg "simply fails to come to grips with current precedent."  That is, I was making what I thought to be the rather obvious point that Lawrence is a more recent, pertinent precedent bearing on the thread's discussion of constitutionally protected liberty interests.  Glucksberg is still there, of course, but we must read it in light of Lawrence.  Thus, there's a big difference between what I said and what Rick seems to think I said.

What Lawrence clearly did confirm is that Rick's reading of Glucksberg's tradition analysis is not dispositive of the question whether an asserted right qualifies as a constitutionally protected liberty interest.  Lawrence did certainly discuss tradition, but, as I said in my first post on this thread, its discussion confirms that the determinative question is *not* whether the asserted right is "objectively, deeply rooted" in our nation's traditions and history.  Though Lawrence did not precisely describe the role history plays in this analysis, it seems clear that relatively recent historical trends are at least as important as deeply rooted traditions.  So if Rick is looking for something in Glucksberg's analytical approach that Lawrence departs from, he might look to the role tradition plays in the two opinions.  *That* was my original point:  that Lawrence's treatment of tradition is not the same as Glucksberg's, and thus that relying exclusively on Glucksberg fails to account for pertinent, recent precedent.  But again, this obviously is *not* the same as saying Lawrence overruled Glucksberg.  On that point, Rick responds to a statement I never made.

As for Rick's request that I distill Lawrence down into a "test," my answer is the same:  I never said Lawrence explicitly articulated a single test.  Maybe one can divine a simple test from the opinion; maybe one can't.  But assuming one can't, that doesn't make the opinion irrelevant.  (Indeed, the common law tradition is full of opinions building on certain legal concepts without expressly articulating a one-size-fits-all test.)  And to return to Rick's earlier post, the absence of an easily articulable all-purpose test in Lawrence certainly doesn't mean that the case had "nada" to say about what liberty interests are protected by the Constitution.  As my previous post explained, the opinion does give some guidance on that score.

Again, I'm not holding Lawrence up as a model of judicial reasoning.  What I *am* saying, and have been saying for three posts now, is that Lawrence is relevant to deciding what liberty interests are constitutionally protected; that its treatment of tradition is not the same as Glucksberg's; and that it is very difficult to see how anyone who has read the Lawrence opinion could say in good faith that it has "nada" to say about what liberty interests are protected by the Constitution.  How that justifies Rick's statement that "the rhetorical flourishes are all [mine] on this thread" is simply beyond me.            

Trevor Morrison

---------- Original Message ----------------------------------
From: Rick Duncan <nebraskalawprof at yahoo.com>
Date:  Tue, 16 Mar 2004 16:27:06 -0800 (PST)

>OK, Trevor, I'll bite. What is the new test that
>Lawrence gives us to determine whether an asserted
>liberty is fundamental? If Lawrence somehow overrules
>the Glucksberg threshold test without even citing
>Glucksberg, exactly what test does it replace it
>The rhetorical flourishes are all yours on this
>thread. You announce that Glucksberg is no longer the
>test for fundamental rights under SDP, and that
>Lawrence has replaced it. So exactly what is this new
>test, and exactly why should we think that a recent
>case is overruled by a case that does not even cite
>You may take 3 hours and two bluebooks to write your
>Cheers, Rick Duncan
>Rick Duncan 
>Welpton Professor of Law 
>University of Nebraska College of Law 
>Lincoln, NE 68583-0902
>"When the Round Table is broken every man must follow Galahad or Mordred; middle things are gone." C.S.Lewis
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